Back in August 2023, the Ninth Circuit broke peoples minds when they issued a Second Amendment opinion.
The merits panel decided that “butterfly knives” were arms. Since Andrew Teter wished to keep and bear butterfly knives, his conduct was covered by the plain text of the Second Amendment.
Having decided that the conduct was covered by the Second Amendment, the panel found that the conduct was presumptively protected by the Second Amendment. Thus, the burden shifted to the state to prove a history and tradition of banning an arm in common use.
The state failed to meet their burden, and the panel reversed and remanded the case.
Of course, this lead to the state freaking out. They begged for mommy to save them. In February 2024, mommy stepped in and agreed to overturn the merit panel. Sorry, they agreed to hear the case en banc
This case was originally docketed with the Ninth Circuit court in May 2020. The en banc oral arguments are now scheduled for June 2024. 4 long years of litigation.
Last week, the First Circuit court decided that means-end balancing was still acceptable.
They assumed, without finding, that magazines were arms under the plain text meaning of the Second Amendment. They went on to find that the plain text of the Second Amendment covered the conduct. As such, the conduct was presumptively protected by the Second Amendment.
I.e., they said that magazines are arms and keeping and bearing them is presumptively constitutional.
They then moved on to the historical analysis. Somehow, they decided that a lack of historical matches required them to use an analogical analysis. They reasoned that since they couldn’t find any regulations banning anything like magazines, that meant that carrying magazines was a new societal issue.
According to the First Circuit, the Supreme Court “directs” them to examine how the burden of the modern regulation matches the burdens of historical regulations.
In the First Circuit, if the court decides the level of rape being done to you, today, isn’t worse than the level of rape done by some past law, the current rape is allowed.
The state has told the Ninth Circuit court:
The First Circuit properly looked to “how a regulation actually burdens the right of armed self-defense, not how it might be imagined to impose such a burden.” Id. On the record before it, the court found that “civilian self-defense rarely—if ever—calls for” large-capacity magazines, noting plaintiffs had identified just a single example. Id. Appellants here have similarly identified just one arguable example of butterfly knives being used for self-defense—one occurring outside the United States. See Reh’g Pet. 10-11.
—No. 163 Andrew Teter v. ANNE E. LOPEZ, No. 20-15948 (9th Cir.)
This entire “burden” argument comes from the law imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted.
—District of Columbia v. Heller, 467 U.S. 837, 2848 (2008), Justice Breyer, dissenting.
The majority, did mention “burden”. They said, Nothing about those fire-safety laws undermines our analysis; they do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents.
—id. at 2819–20
In other words, the Heller court found no historical law matched a ban on arms.
Regardless, we can see the poison of bad opinions spread, constantly. It will not surprise me if the Ninth takes up this “burden” bullshit. It is just another “means-end” lie to infringe on our rights.